Citation Nr: 9901504
Decision Date: 01/21/99 Archive Date: 02/01/99
DOCKET NO. 93-19 142 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUES
1. Whether new and material evidence has been submitted to
reopen the claim for entitlement to service connection for
the cause of the veteran's death.
2. Entitlement to a rating in excess of 30 percent for the
residuals of a gunshot wound of the left foot and heel for
the purposes of accrued benefits.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Stanley Grabia, Associate Counsel
INTRODUCTION
The veteran had active service from February 1951 to December
1953, and from May 1956 to May 1974.
Entitlement to service connection for the cause of the
veteran’s death was denied by a rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) of
St. Petersburg, Florida in October 1979. The appellant was
notified of that action and failed to timely disagree
therewith, accordingly, that rating became final. The record
reflects attempts to reopen the claim, denied by letter, in
years subsequent to that formal denial.
This appeal comes before the Board of Veterans' Appeals
(Board) on appeal from the appellant’s subsequent
unsuccessful attempts to reopen her claim before the
Montgomery, Alabama RO. The RO denied the appellant’s most
recent attempt on the basis that she had failed to submit new
and material evidence to reopen her claim of service
connection for the cause of the veteran’s death. As the
appellant has moved to Alabama, the Montgomery, Alabama RO
now has jurisdiction of the claims folder.
The case was previously before the Board in July 1995, and
remanded for additional development. The requested
development has been completed as to issue 1 on the title
page. The Board now proceeds with its review of the appeal
as to that issue.
Consideration of issue 2 on the title page however, will be
limited to the Remand section which follows the Order section
below.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant, the veteran’s spouse, contends, in essence,
that she is entitled to service connection for the cause of
the veteran’s death. Specifically, she maintains that she
has submitted new and material evidence to reopen her claims.
It is asserted that the appellant was treated for chest pains
and high blood pressure in service, and that this represents
the onset of his heart pathology. Her representative joins
in these contentions.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that new and material evidence has
not been submitted by the appellant which would permit her to
reopen a claim of entitlement to service connection for the
cause of the veteran’s death.
FINDINGS OF FACT
1. The RO has obtained all available relevant evidence
necessary for an equitable disposition of the appellant's
appeal.
2. Service connection for the cause of the veteran’s death
was denied by the RO in a decision dated in October 1979.
The appellant was informed of this decision and failed to
timely disagree therewith, accordingly, that rating became
final. This was the last formal final denial on any basis.
3. The evidence received into the record since the prior
denial is not so significant that it must be considered with
evidence previously assembled to fairly decide the merits of
the case as it is cumulative and not probative, and when
viewed in the context of the entire record.
CONCLUSION OF LAW
Evidence received subsequent to the unappealed rating
decision of October 1979, which denied entitlement to service
connection for the cause of the veteran's death, is not new
and material, the claim is not reopened, and the prior
unappealed rating action is final. 38 U.S.C.A. §§ 5107,
5108, 7105 (West 1991 & Supp. 1998); 38 C.F.R. §§ 3.104(a),
3.156(a), 20.302(a) (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board finds that the “well grounded”
requirement shall not apply with regard to reopening
disallowed claims and revising prior final determinations.
See Jones v. Brown, 7 Vet. App. 134 (1994). All pertinent
evidence has been developed and there are no contentions of
additional information which would be useful to this claim.
Prior final rating decisions may only be reopened upon the
receipt of additional evidence which, under the applicable
statutory and regulatory provisions, is both new and
material. 38 U.S.C.A. §§ 5108, 7105. New and material
evidence means evidence not previously submitted to agency
decision makers which bears directly and substantially upon
the specific matter under consideration, which is neither
cumulative nor redundant, and which by itself or in
connection with evidence previously assembled is so
significant that it must be considered in order to fairly
decide the merits of the claim. 38 C.F.R. § 3.156 (a); Hodge
v. West, No. 98-7017 (Fed. Cir. Sept. 16, 1998).
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Some
disabilities, such as cardiovascular disease may be presumed
to have been incurred in service if manifested to a
compensable degree within 1 year following separation from
service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R.
§§ 3.307, 3.309.
In order to establish entitlement to service connection for
the cause of the veteran's death, the evidence must show that
disability incurred in or aggravated by active service either
caused or contributed substantially or materially to cause
death. 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312. When all the
evidence is assembled, VA is responsible for determining
whether the evidence supports the claim or is in relative
equipoise, with the claimant prevailing in either event or
whether a preponderance of the evidence is against the claim,
in which case the claim is denied. See Gilbert v. Derwinski,
1 Vet. App. 49 (1990).
Service connection was denied for the cause of the veteran's
death in an unappealed rating decision in October 1979. The
appellant was provided with notice of that action and did not
undertake a timely appeal. Thus, that action is final.
38 U.S.C.A. § 7105.
In making that decision, the RO considered the evidence then
of record which included the appellant’s enlistment and
separation physical examinations, and service medical records
which were negative for any cardiovascular disorder. The
evidence on file, it was held, did not show any relationship
between the acute myocardial infarction which caused the
veteran’s death and service. It was not shown by any
evidence on file that he had findings of cardiovascular
disease within 1 year after separation from service.
The veteran's death certificate indicated that the veteran
died on May 27, 1979, at age 47, of an acute myocardial
infarction, with no additional conditions contributing to
death reported. It was indicated that an autopsy was not
performed, but that the case was referred to the medical
examiner.
At that time of the veteran's death, service connection was
in effect for; residuals of a gunshot wound (GSW), status-
post operative (SP) left foot and heel, evaluated as 30
percent disabling; bilateral hearing loss, evaluated as 10
percent disabling, and hemorrhoids, evaluated as
noncompensable.
As noted, this evidence was on file at the time of the 1979
decision by the RO. There was no evidence of hypertension or
other pathology during service, nor was there such evidence
of cardiovascular disease within 1 year after service.
In July 1988, the appellant again requested entitlement to
service connection for the cause of the veteran's death. The
RO denied the claim as no new and material evidence to reopen
the claim was received.
In February 1990, the appellant submitted a letter requesting
entitlement to service connection for the cause of the
veteran's death due to Agent Orange exposure. In that
letter, she reported that she had recently been awarded a
settlement with respect to her husband's Agent Orange
exposure. In that regard, the RO requested additional
information from the appellant via letter dated in June 1990,
but received no response.
In July 1991, the appellant again submitted a letter
requesting entitlement to service connection for the cause of
the veteran' death, asserting that the veteran was
treated for severe chest pain while stationed in Germany
during active service, and also received relevant post-
service VA outpatient (OPT) treatment. She also indicated
that she was getting a copy of the autopsy report of her
deceased husband.
A copy of an autopsy was forwarded to the RO. The
impression, after autopsy was of an acute myocardial
infarction. Thus, this document, while new is essentially
cumulative as it confirms the cause of death that was
previously listed on the death certificate.
The appellant requested a hearing before the RO in her Appeal
to the Board dated in October 1992. However, she canceled
that hearing. A notation by the RO indicated that she would
reschedule if she could secure more evidence. No
rescheduling was done prior to the claim being forwarded to
the Board for adjudication.
In July 1995, the Board remanded the claim for further
development, including obtaining; additional service medical
records; post service VA clinical records of treatment for
cardiovascular disabilities proximate to active service; and,
records pertaining to an reported settlement for veteran’s
exposure to Agent Orange. Such records reveal that the
appellant was part of the Agent Orange settlement, but there
is no indication that cardiovascular disease that resulted in
his death was secondary to Agent Orange exposure, or played
any part in the settlement award that was given. As such,
these records are not new and material and do not provide a
basis for reopening the claim.
A hearing was held at the RO in January 1998, however, the
appellant did not produce any new evidence. She testified
that she saw a deterioration in the veteran prior to his
retirement from service, and took him to the hospital several
times with severe chest pains. He had them all the time.
She could not say that he was ever diagnosed with a heart
disorder as he did not tell her what his doctors told him.
She believed that his heart attack was caused by stomach
problems, hemorrhoids, diarrhea, and chest pains, as well as
his heel wound. He also had hearing loss, and weight loss.
She further testified that she knew he had heart problems
prior to the acute heart attack which caused his death. He
had a little cough which came up foaming with some yellow
stuff. He had to go outside for air.
The hearing officer noted that the Board remand requested
that she submit any medical treatment records post service
regarding a heart condition. While she indicated he received
treatment for a heart condition, she had not submitted any
evidence to support this claim. She testified that she did
not know the names of his doctors, and did not know how she
was going to obtain any supporting medical records.
The cause of death, acute myocardial infarction, is not
refuted by any medical evidence of record. Finally, there is
no competent medical evidence on file that associates the
acute myocardial infarction, with the appellant’s period of
service.
It is also noted that no complaints of any cardiovascular
disorders appear in the record until the veteran’s death on
May 27, 1979, 5 years after service separation.
Additional evidence had been received, including an autopsy
report, and post service treatment records from 1974. None
of these records, some of which were new to evaluators,
associate the acute myocardial infarction which caused the
veteran’s death with any event or occurrence in service.
These additional records do not indicate diagnoses or
findings of any cardiovascular disorders. The lack of a
diagnoses or findings of any cardiovascular disorders does
not make this evidence so significant, either by itself or in
conjunction with other evidence on file that to be fairly
considered a decision on the merits is needed. Thus, the
evidence is not new and material and the claim is not
reopened. 38 C.F.R. § 3.156(a); Hodge v. West, No 98-7017
(Fed. Cir. Sept. 16, 1998). The record is, after the
submission of the evidence since the prior unappealed rating
decision, in essentially the same posture as it was then.
Specifically, this evidence does not confirm a diagnosis or
show any findings of any cardiovascular disorders said to be
due to service, nor does it show that the acute myocardial
infarction which caused the veteran’s death has been related
to service. The evidence is not now and material to reopen
the claim.
ORDER
New and material evidence has not been submitted to reopen a
claim of entitlement to service connection for the cause of
the veteran's death, and the appeal is denied.
REMAND
As noted in the prior REMAND there was an open claim for an
increased rating for the residuals of a gunshot wound of the
foot at the time of the veteran’s death. Pursuant to
development, the appellant has indicated a desire to pursue
that issue for the purposes of accrued benefits. That issue
is in need of development and certification to the Board.
In view of the foregoing, this case is REMANDED to this
extent and for the following action:
The RO should issue to the appellant and
her representative a supplemental
statement of the case that includes laws
and regulations concerning the awarding
of accrued benefits and includes laws and
regulations concerning the increased
rating sought. Thereafter, the appellant
and her representative should have an
opportunity to respond thereto.
Thereafter, the appeal as to this issue should be returned to
the Board for further appellate consideration, to the extent
such action is in order. No action is required of the
appellant until she is notified. The Board intimates no
opinion as to the ultimate outcome of this issue by the
action taken herein.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-466, § 302, 108 Stat. 4645, 4658 (1994) and
38 U.S.C.A. § 5105 (West 1991 and Supp. 1996) (Historical and
Statutory Notes). In addition VBA’s ADJUDICATION PROCEDURE
MANUAL, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and by the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
MICHAEL D. LYON
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402 (1988). The date that appears on the
face of this decision constitutes the date of mailing and the
copy of this decision that you have received is your notice
of the action taken on your appeal by the Board of Veterans’
Appeals. Appellate rights do not attach to those issues
addressed in the remand portion of the Board’s decision,
because a remand is in the nature of a preliminary order and
does not constitute a decision of the Board on the merits of
your appeal. 38 C.F.R. § 20.1100(b) (1998).
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